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2.4.8 Common Law & The Cambridge Water Company v Eastern
Counties Leather Case
As discussed in Section 2.4.1, the UK is currently implementing its contaminated
land regime, however, the Common Law has been dealing with acts of tort against
land for centuries (Rossi 1995). Under Common Law, liability for environmental
damage can arise in negligence, in nuisance, or under the “rule in Rylands v.
Fletcher”. Liability in negligence is fault-based, while liability in nuisance is strict,
provided that the damage suffered was reasonably foreseeable. Under the rule in
Rylands v. Fletcher a landowner who brings onto his land something dangerous
which then escapes and causes damage is strictly liable for that damage, except that
as with nuisance, the relevant damage must have been reasonably foreseeable (DoE
1994b).
These principles of Common Law were tested exhaustively in the Cambridge Water
v Eastern Counties Leather Case. The case concerned the contamination of
Cambridge Water Company’s (CWC) aquifer by the spillage of perchloroethene
(PCE) from the Eastern Counties Leather Tannery (ECL) (Clarkson 1994). Water
extracted from CWC's borehole at Sawston Mill was first used in public supply in
June 1979. Stricter EC Drinking water standards were introduced in July 1985,
which quantified maximum permissible PCE concentrations. Levels of PCE in the
abstracted water were now above the new standards, hence the water could no longer
be regarded as “wholesome” and a new source was required. The cost of developing
an alternative supply was approximately £1 million.
The case reached the Judicial Committee of the House of Lords in December 1993,
before which there had been doubt about the law in this area. Their Lordships’
unanimous judgement established that where nuisance or the rule in Rylands v.
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Fletcher was concerned, a plaintiff did have to establish that the damage was
reasonably foreseeable at the time of the polluting act (DoE 1994b). The Law Lords
subsequently found in favour of Eastern Counties Leather (Clarkson 1994).
The Framework Document stated that the Lords’ decision had established a “sensible
balance” between strict and fault-based liability within the Common Law in this area
while adding useful flexibility (DoE 1994b). The Framework Document (DoE
1994b) therefore stated that changes to Common Law by statute would be
inappropriate. It was considered more appropriate to allow courts to decide the
outcome of a case based on evidential weight rather than for Parliament to add or
reduce the rights of potential plaintiffs and defendants.
2.4.9 Environment Act 1995 Provisions
As can be seen in Section 2.4.7, legislation is in place so that normal market forces
deal with contaminated land when sites become available for sale or redevelopment.
Problems, therefore, arise when no transactions take place (Rossi 1995). Rossi
(1995) noted that persons in possession of contaminated land are unlikely to clean-up
a site if their actions bring no economic gain. In order that contamination is dealt
with, therefore, in the absence of transactions, statutory legislation is required.
Statutory legislation relating to contaminated land was introduced into the
Environmental Protection Act 1990 via the Environment Act 1995. The Act aims to
deal with contaminated land that is posing an actual threat to human health or the
environment. Where contamination is such that it presents no actual risk to human
health or the environment, Rossi (1995) explained that there seems little point
forcing anyone into expenditure just for the sake of it. The main objectives of the
new regime are (Lowe 1996):
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i.
improve the clarity and consistency of the law relating to contaminated land,
ii.
reinforce the “suitable for use” principle,
iii.
clarify the role of Local Authorities, and
iv.
impose no new regulatory burdens.
Prior to the Environment Act 1995, legislation relating to contaminated land was
distributed over a number of different Acts. This led to a great deal of confusion, as
it was often unclear which part of the legislation applied to a particular situation.
The new Act was intended to clarify the situation, drawing together the various
pieces of legislation. The Act is itself, however, very complex and bureaucratic, and
is further complicated by the primary legislation’s reliance upon secondary guidance
for its implementation (see Section 2.4.10) (Steadman 1997).
The Act attempts to clearly define contaminated land, containing the first ever
statutory definition under English Law (Denner 1996):
“Contaminated land is any land which appears to the local authority in whose
area it is situated to be in such a condition, by reason of substances in, on or
under the land, that
a)
significant harm is being caused or there is a significant possibility of
such harm being caused; or
b)
pollution of controlled water is being, or is likely to be caused”.
The Act goes on to define “harm” as:
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“harm to the health of living organisms or other interference with the
ecological systems of which they form part, and in the case of man, includes
{harm} to his property”.
The regime implements the “suitable for use” approach, discussed in the Framework
document (DoE 1994b). Action is required to deal with unacceptable risks to health
or the environment, taking into account the use of the land in question and its
environment setting. The regime, however, only applies to sites that are currently
posing risks. Contaminated land that is contained or that is not causing a threat will
be dealt with under the Planning System, should a change of use or redevelopment of
the site arise (Steadman 1997).
The Act is wide ranging and established the Environment Agency. The Agency was
formed on 1st April 1996 and is one of the largest environmental regulatory and
management organisations in the world. It provides a comprehensive approach to the
protection and management of water, land and air by merging Her Majesty’s
Inspectorate of Pollution, the National Rivers Authority, the Waste Regulation
Authorities and some sectors of the Department of the Environment.
The main aspects of the Environment Act 1995 for dealing with contaminated land
were summarised by Denner (1996) as:
i.
identify the problem,
ii.
assess the risks,
iii.
determine appropriate remediation requirements,
iv.
consider costs, and
v.
establish who should pay.
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The primary regulatory role under the contaminated land regime rests with the Local
Authority.
The Act attempts not to place new regulatory burdens upon the
authorities. Although the regime itself will be new, its overall structure and the
nature of the controls it can apply broadly reflect existing, more general, powers
under “statutory nuisance” legislation (Denner et al. 1996).
Local Authorities are required to (Denner et al. 1996):
i.
cause their area to be inspected in order to identify contaminated land,
ii.
consult on what remediation might be required in any individual case,
iii.
require remediation to take place, through the service of a formal
Remediation Notice where necessary, and with powers to act in default, and
iv.
record information about remediation carried out under the regime.
Resources are quite clearly a key issue in relation to the proper enforcement of the
regime (Higgins 1996). The identification and possible investigation of sites is an
expensive process and although funds have been identified to assist, it is unlikely that
they would be sufficient. Contaminated sites with no identifiable owner, termed
“orphan sites”, would furthermore require the Local Authority to act in default and
carry out any remediation work itself. How this will be funded will be a significant
issue for authorities to deal with (Steadman 1997).
The Environment Act 1995 goes on to deal with “special sites” that pose serious
risks; consultation; recording of information about the condition of land and action
taken; and how cost recovery may be limited. The emphasis is on a positive and
controlled action, with powers for Local Authorities to act in emergencies or where
they cannot recover costs. In this way, the Act aims to deliver the objectives set out
in “Framework for Contaminated Land” (Denner 1996).
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The provisions relating to contaminated land are found in Part IIA of the
Environmental Act 1995, and as yet are not in force. Implementation of the Act is
heavily dependent upon guidance to be issued by the Secretary of State. Draft
guidance for public consultation was published in September 1996, however, the
Statutory Guidance is unlikely to be finalised before April 1999 (Denner 1997).
2.4.10 The Guidance
As mentioned above, the Environment Act 1995 has provision for Guidance issued
by the Secretary of State. The Guidance is of crucial importance in interpreting the
new provisions of the Act. The Guidance is intended to ensure the necessary
flexibility can be maintained in the primary legislation and set out a detailed
framework within which professional judgement can be applied in a consistent and
predictable manner (Denner et al. 1996). Specific Statutory Guidance will be
provided for:
i.
identification of contaminated land,
ii.
remediation requirements,
iii.
apportionment of costs, and
iv.
limits of cost recovery.
Furthermore, Local Authorities will have to refer to the Guidance in determining:
i.
what harm is to be regarded as “significant”?,
ii.
is the possibility of significant harm significant?, and
iii.
is the pollution of controlled waters being caused?
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2.4.11 Regime Delay
Implementation of the Guidance, and hence the contaminated land regime, was
delayed due to the General Election in 1997. The DoE led a consultation exercise in
September 1996 on the draft guidance regarding the identification of contaminated
land and appportionment of liability for clean-up. It received 300 responses, and was
expected to lay the finished guidance before Parliament within a few weeks (ENDS
1997b). The lack of available Parliamentary time, however, prevented the previous
government introducing the regime before the election. The regime was further
delayed due to the new Government’s pre-election promise not to increase public
expenditure above the plans inherited from its predecessor for its first two years in
power (ENDS 1997c). ENDS (1997c) noted that the new Government cannot be
expected to adopt the view that contaminated land does not constitute a new burden
on public authorities, which was based on the flimsy grounds that it amounts to little
more than a clarification of local authorities’ existing powers to tackle land
contamination under statutory nuisance legislation. Figures from Local Authorities
have estimated that the immediate set-up costs of the regime will amount to
£12million per annum, which is expected to double within a year or two as councils
begin site investigations and seek legal advice on how liability should be apportioned
(ENDS 1997c).
The Environment Minister, Michael Meacher, announced to Parliament in December
1997 that the package of primary legislation and accompanying guidance provide
“broadly the right framework for the protection of human health and the environment
without imposing unnecessary burdens on home owners, landowners, developers and
industry” (ELM 1998). The Minister, however, went on to state that the DoE would
continue to develop the package of draft guidance and regulations.
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At the present time (1998), therefore, the “Framework” document remains the latest
authoritative statement of the UK Government’s Policy for dealing with
contaminated land.
2.4.12 Conclusion
There have been a number of developments in the UK to promote clean-up of
contaminated land, following the economic recession of the early 1990s which
provided little incentive to develop brownfield sites.
The Government passed the Environment Act 1995 to clarify the liability regime.
The new legislation provides some significant opportunities to deal with Britain’s
legacy of contaminated land.
The regime, however, is extremely complex and
bureaucratic, with only a small number of sites falling within the auspices of the
Environment Act. The majority of contaminated land will, therefore, be remediated
during redevelopment and thus remain in the realms of the Planning System.
The Government policy of halting out-of-town development in favour of renovating
inner city and derelict areas has forced developers to consider inner city sites which
are often contaminated (Twite 1996). Indeed, Angela Eagles MP (1998) reaffirmed
the Government’s policy to build 60% of all new residential developments on
brownfield sites. The new Government has, however, given its approval for the
development of up to 10,000 new homes on the outskirts of Stevenage in
Hertfordshire and a similar size development in Northumberland on greenfield land.
Finally, a modest economic recovery in the commercial and industrial property
market, combined with additional support form the Government, such as those
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provided by English Partnerships, has improved the economics of redeveloping
contaminated land.
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YEAR
1969
1970
1976
1977
1978
1980
US
EPA Established.
Environment Policy Act Enacted.
RCRA Enacted.
Love Canal Residents Report
Illness.
Media Attention on Love Canal.
Public Health Emergency
Declared at Love Canal.
Draft RCRA Regulations
Published.
Final RCRA Regulations
Published.
31st December CERCLA Enacted
($1.6 billion).
1981
1985
1986
1987
Lekkerkerk Contamination Incident.
Congressional Inquiry into EPA.
EPA Administrator Resigns.
Superfund Expires For 1 Year.
SARA Enacted ($8.5 billion).
Loscoe Bungalow Explosion.
House of Commons Environment
Select Committee Study.
EPA 1990 Section 143 Registers.
Select Committee Report Published.
Section 143 Consultation Paper.
1990
1992
1993
1994
London And Merseyside Development
Corporations Established.
Derelict Land Grant Introduced.
Soil Protection Act 1987
Duty Of Care For Soil.
1988
1991
UK
ICRCL Established.
Lekkerkerk Clean-up Cost £156
million.
Soil Clean-up (Interim) Act 1982.
Interim Act List Identifies 4500
Sites.
Multifunctionality Introduced .
“ABC” Standards Introduced.
1982
1983
NETHERLANDS
Superfund Reauthorised ($5.1
billion).
SACM Introduced.
1995
Superfund Expired.
Superfund Reform Act 1994 Not
Enacted.
Superfund Reform Debate.
1996
Superfund Reform Debate.
1997
Superfund Clean-Up Acceleration
Act Not Enacted.
1998
1999
Superfund Reform Debate.
Superfund Reform Debate.
Circular On Intervention Values.
“B” Value Abolished.
10,000 Sites On Interim List.
Section 143 Proposals Reissued.
Registers Withdrawn.
Review Started.
Cambridge Water Company Case.
Paying For Our Past.
Framework Document Published.
English Partnerships Created.
Environment Act 1995.
Draft Guidance Issued.
Environment Agency Established.
RCEP Study.
Policy Reversal.
100,000 Sites Identified.
Shift From Multifunctionality to
“End-Use” for Historic
Contamination
Database of Developed Land.
Statutory Guidance Expected.
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2.5 POLICY TRENDS
2.5.1 Introduction
The discussions of international policy approaches in the previous sections of this
literature review highlighted their respective differences on implementation. This
section examines the similarities that exist between the various policy stances, and
highlights the emerging trends.
The research questions, upon which this research is based, are developed in this
section. Perry (1994) noted that in general, “the total number of research questions
should not exceed four or five; if there are more, sufficient analysis may not be done
on each within the constraints of a PhD thesis.” With this point in mind, the research
questions were formulated.
As the discussion of the literature unearths a point that requires further research, the
research question is presented. Perry (1994) stated that in this manner the research
questions should “appear to grow out of the review”. A summary list of the questions
is then presented in the concluding section.
2.5.2 Policy Developemt
As mentioned above, similarities in contaminated land policies are now addressed.
CIRIA (1997) discussed both UK and International contaminated land policy,
highlighting that concerns over the potential effects of contamination on health and
the environment provide the rationale for policy development in most countries, and
are the common basis for much statutory provision. Common characteristics of
European and International approaches include (CIRIA 1997):
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i.
recognition of the relationship between incidence of contaminated land and
historical uncontrolled industrial or waste disposal operations,
ii.
past experience of highly damaging contaminated land “incidents”,
iii.
concerns about the possible health and environmental threats associated with
the presence of contamination,
iv.
introduction of legislation and technical guidance as a means of dealing with
both historical and possible future contamination,
v.
provision of public funds for remedial and related action, particularly where
responsible parties are no longer identifiable or do not have the financial
means to meet remedial requirements, or where past activities met legal
requirements at the time, and
vi.
involvement of public authorities in other relevant areas including
identification, assessment, research and development.
CIRIA (1997) also noted that the transfer of liability for most contamination through
property transactions is a major factor driving remediation of contaminated land by
responsible parties who would otherwise find it difficult to make a satisfactory sale.
2.5.3 Suitable for Use
CIRIA (1997) noted that when assessing contaminated land, procedures must cater
for the individual nature of the risks posed by a particular site. The UK has
traditionally included in this assessment the current or future use of the site. Similar
approaches have been adopted in Germany and Denmark and are a feature of
Australian and Canadian policies (CIRIA 1997). This practice is referred to as
“suitable for use” or an “end-use” approach (see Section 2.4.6).
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As discussed in Section 2.3.5, the Netherlands has announced a significant shift in
policy away from “multifunctionality” towards an end-use style approach. The
United States, furthermore, has also considered this approach as part of the
Superfund reauthorisation debate (Hawkins 1994). The Dutch policy shift towards
end-use was made in order to prevent the costs of soil remediation from hampering
economic and social development (see Section 2.3.5) (de Boer 1997).
As described in Section 2.4.6, under the “suitable for use” philosophy, the degree of
remedial action required is dictated by the risks posed by contamination in relation to
the actual or intended use of a site. In contrast, the former Dutch “multifunctionality”
approach requires soils to be cleaned until their functioned properties for humans,
flora and fauna have been restored (ENDS 1996). A 1996 report of the UK Royal
Commission on Environmental Pollution (RCEP), however, takes issue with both
approaches (Dickson 1996; ENDS 1997b).
The RCEP is an independent, standing body whose remit is to advise the Head of
State, Government, Parliament and the public on environmental issues (Macrory
1996). The RCEP’s most recent report, “Sustainable Use of Soil” (RCEP 1996)
analysed the problems affecting UK soils and assessed the adequacy of present
policies to deal with those problems. The report made several recommendations
designed to accelerate the rate of remediation (ENDS 1997d), which are now
discussed.
As mentioned above, the RCEP (1996) study criticised both multifunctionality and
“suitable for use”.
The RCEP (1996) study stated the problem with
multifunctionality was its “excessive costs, both in money and in energy and other
resources, to remediate sites to a higher standard than their future use requires”. The
study went on to note that a likely consequence of “excessively high” clean-up
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standards was that remediation of sites would be very slow, thus “the benefits from
putting them to a new use will not be obtained” (RCEP 1996). As discussed in
Section 2.3.5, the above points were also included by the Dutch Minister, Margaretha
de Boer (1997), as some of the reasons for the Dutch policy shift away from
“multifunctionality”.
With regard to the “suitable for use” philosophy, the RCEP study stated it has
“serious limitations”. The study stated that:
“‘suitable for use’ gives logical priority to a choice of a future use, but ideally
that choice should take into account information about the condition of the
site and the costs of remediation to various standards. Decisions about
remediation are sometimes taken without knowledge of the future use.”
The study also noted that the intended use may change, or the first new use may later
give way to another. One of the major goals of the RCEP is the protection of
greenfield sites. The report noted low cost clean-up of sites for open space may leave
it too contaminated to support “hard” end-uses (i.e. industry, commerce, housing
etc), thus the pressure on greenfield sites remaining.
The RCEP’s preferred option imports two principles from the Environmental
Protection Act 1990 (ENDS 1996):
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“the combination of remediation and subsequent use adopted for a
contaminated site ought to represent the best practicable environmental
option….. In some cases it will be possible to remediate a site to a higher
standard than is required for its immediately intended use without incurring
substantial additional costs”.
The RCEP (1996) recommended that:
“as a general principle, sites be remediated to the highest standard that can be
reached without excessive cost and not merely to the standard required for the
use immediately intended”.
The Government’s response, however, to the RCEP recommendations was mainly
critical (DoE 1997). The main criticisms are now discussed.
The Government noted that where remediation is carried out on a voluntary basis, it
is open to the landowner or developer to seek to remediate the land on as wide a
basis as he/she wishes, so long as the land becomes “suitable for use”. The response
noted that the landowner/developer may have particular commercial reasons for
wishing to make the land suitable for a wide range of uses, for example, to promote
additional investment confidence.
The Government stated, however, that “the imposition of requirements to carry out
remediation on a wider basis than the ‘suitable for use’ approach is not justified”.
The Government argued that the approach was intended:
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“to deal with the real and urgent problems associated with land
contamination, but within a context of avoiding unnecessary financial and
regulatory burdens. It provides an appropriate balance between the costs of
dealing with the legacy of past contamination, and the priorities of dealing
with the health and other environmental problems it can present”.
As stated in the Framework document (DoE 1994b), the Government’s main aim
was that of “sustainable development”. The response to the RCEP (1996)
recommendations states that “imposing wider remediation requirements would go
against the interests of sustainable development”. The Government believe that the
additional cost of further clean-up would misdirect resources and thus limit other
developments projects. The Government’s major criticism of a best practicable
environmental option approach was that it could (DoE 1997):
“direct resources to meeting additional and unnecessary costs on some sites,
whilst leaving more pressing problems elsewhere unresolved through lack of
money. It could also have the effect of reducing the total level of resources
used to deal with land contamination. Adding to development costs of
individual projects could render otherwise worthwhile projects uneconomic
and prevent private sector investment taking place”.
From the discussion of the literature above, the following points are considered to
require further research:
Question:
Are contaminated land policies converging towards an “end-use”
style approach?
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Question:
Will an “end-use” style approach deal effectively with the
contaminated land legacy present throughout the world?
2.5.4 Proactive Approaches
The RCEP (1996) made a number of recommendations for accelerating the clean-up
of contaminated land. The report stated that, “from past experience, we know that
market forces alone will not bring about more extensive recycling of derelict and
contaminated sites”. At the stage when a definite demand for a new use has arisen,
there may not be time to remediate a suitable contaminated site”. The RCEP
concluded that the only way to create an efficiently functioning market on the
required scale is for the government to take a “proactive approach” (RCEP 1996).
For the success of such an approach the RCEP listed two essential requirements:
i.
in collaboration with local planning authorities, development agencies in each
part of the UK should promote land banks of remediated sites in various stage
of restoration and actively seek potential uses for those sites and suitable
users or buyers. This will ensure that remediated brownfield sites will be
available for use when developers require them, and
ii.
the RCEP believe that the remediation and reuse of brownfield sites will be
inhibited if the owner or purchaser of such a site is vulnerable to
unpredictable future costs should new standards or new technology lead to
demands for remediation to a new higher standard. The RCEP recommend,
therefore, that on completion of remediation to the standard demanded by the
local authority, and certified by the Environment Agency, an owner should be
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able to obtain a completion certificate which will provide a safeguard against
new and more stringent demands relating to the original contamination.
In response to the RCEP’s recommendations, the Government stated that it did not
consider it appropriate to promote land banks of sites remediated for future potential
development (DoE 1997). The response noted that local planning authorities are
already advised to set out their policies for the reclamation and possible use of
contaminated land in their development plans. Plans should include the detailed
criteria which will be applied in determining a planning application for development
on such land. Development plans may also set out any site-specific proposals for
land use, where contamination is known or suspected, so that they are readily
identifiable to landowners and prospective purchasers or developers. The
Government stated that this approach would give developers the flexibility to
operate, whilst ensuring acceptable environmental standards. The Government noted,
in line with its “suitable for use” approach:
“reuse of previously contaminated land is about finding an appropriate, not
necessarily the best, environmental and developmental use that is
economically viable”.
Land banks have been used as part of the “Brownfields Action Agenda” in the US
(USEPA 1995) in order to promote the reuse of sites in inner city areas.
In response to the RCEP’s second recommendation regarding completion
certificates, the Government noted that such certificates would not be justified, or
even necessarily helpful to landowners (DoE 1997). As noted in Section 2.2.10,
completion certificates termed “covenants” were proposed as part of the Superfund
Reform Act 1994, which would resolve any present or future liability. As with the
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UK completion certificates, the covenants were also rejected (Tromans &
Turrall-Clarke 1994).
The Government noted that the enforcing agency would be required to act as a
guarantor for the adequacy of remedial works on a site under the RCEP
recommendations. The Government argued that this would be a “significant
departure from the ‘polluter pays principle’”. The Government also noted that a
completion certificate would not achieve any significant increase in market
confidence in land regeneration and reclamation. Questions of whether the guarantee
did or did not apply to any individual case would be, in themselves, a source of
uncertainty and would detract from any benefit which might result from the provision
of a completion certificate. In the context of brownfield redevelopment, the
Government noted that works would in most cases be conducted under planning
approval rather than under Part IIA of the 1995 Environment Act. Completion
certificates, in the form suggested by the RCEP would, therefore, not be relevant in
most cases and could not contribute to investor confidence in the development
project.
From the discussion above, the following point is considered for further research:
Question:
Are proactive approaches applicable and do they compliment or
hinder “suitable for use”?
2.5.5 IMS 10 Project
The Intelligent Manufacturing Systems (IMS) project was established in 1991 to
study the potential for international collaboration in research and development in
advanced manufacturing. The project was industry led with support from academia
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and the governments of Australia, Canada, EC, Japan and the US. IMS comprised of
six
separate programmes
addressing technologies needed to reduce the
environmental impact of process manufacturing. One of the programmes addressed
contaminated land, the study known as “IMS 10 – A Structured Approach to
Remediating Contaminated Land”.
The study had two main aims (Potter 1995):
i.
to gain a worldwide perspective of the nature of contaminated land and
factors which influence the way in which industry selects remediation
methods, and
ii.
to identify common areas of concern and uncertainty about the remediation of
contaminated land which potentially could be solved by future international
collaborative research and development.
The study involved discussions with over one hundred leading personnel from the
chemical, pulp and paper industries, regulators, consultants and contractors and
academics. The study was seen as an extremely valuable initiative and a vehicle for
futhering international collaboration (Potter 1995).
The IMS 10 study concluded that although similar types of contaminants are found at
industrial sites throughout the world, very different policies and strategies have been
adopted by various governments for dealing with contaminated land. This can in part
be attributed to differences in the nature and significance of the contamination
problems which have to be solved.
Other influences on policy development, as summarised by Potter (1995) from the
IMS 10 study, include:
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i.
political lobbying from the public and environmental pressure groups,
ii.
ease of access to courts by individuals and environmental pressure groups,
iii.
the ability of a country and its industry to both financially and technically
deal with land contamination problems at the same time as the more visible
and higher profile air and water emission problems,
iv.
the nature of the relationship between industry and legislators, and
v.
whether prescriptive or pragmatic are the preferred options for regulatory
control and setting of clean-up standards.
This final point of the IMS 10 study is discussed further in the next section.
2.5.6 How Clean is Clean?
The UK’s “suitable for use” approach relies on the fundamental principles of risk
assessment to assess the level of clean-up required for a particular site. Many recent
remediation projects in the UK, however, have been conducted using outdated
clean-up guidelines. Czarnecki (1996) stated that this situation had resulted from a
lack of alternative guidance or legislation. The use of such redundant guidelines has
meant that derelict sites containing anomalous concentrations of a few elements have
been designated as contaminated, with the subsequent removal of part, or even all, of
the fill material to landfill (Czarnecki 1996).
The earliest guidance for assessing contaminated ground in the UK was developed by
Kelly (1978), a scientific officer working for Greater London Council. The
guidelines were based on pooled chemical data acquired from many site
investigations conducted in the 1970s within the London area. The standards were
revised in 1982, with a footnote added stating that for metal concentrations, the
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ICRCL guidelines should be used. This footnote, however, was omitted from the
Health and Safety guidelines of 1991 that were based on Kelly’s work, hence
rendering most of the information contained therein redundant (Czarnecki 1996).
The other routinely used UK guidelines were published by the Inter-departmental
Committee on the Redevelopment of Contaminated Land (ICRCL) (see Section
2.4.2), a specialist work group of the Department of Environment. In 1983, the
ICRCL introduced “threshold trigger levels” as a concentration below which a soil is
considered uncontaminated. An upper “action level” was defined as a concentration
in the soil above which specific remedial measures must be taken or the end-use of
the site changed to a less sensitive one. Beckett (1993), secretary for ICRCL between
1980-1990, illustrated the relationship between the two trigger values and the
significance of the hazards associated with them in Fig. 2-1.
Fig. 2-2 Trigger Concentration Zones (Adapted from Beckett 1993)
Importance
Risk unacceptable TREAT AS CONTAMINATED
Of Hazard
Significance of risk depends on intended use of site
ACTION
USE PROFESSIONAL
JUDGEMENT TO DECIDE
WHETHER ACTION IS
NEEDED
NO ACTION
REQUIRED
REQUIRED
CONCENTRATION
Threshold
Action
Value
Value
Beckett (1993) demonstrated that when used for the interpretation of a site
investigation, the threshold and action trigger concentrations define three
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concentration zones. The first zone is that below the threshold trigger value, in which
a contaminant is present only at relatively low concentrations and can normally be
disregarded. As the concentration increases, a value is reached at which the risks can
no longer be regarded as insignificant: the threshold trigger value. That concentration
is, therefore, the value below which the site can be regarded as uncontaminated for
the specified end-use, even though concentrations found on the site are greater than
those typical of normal background values of that area.
The second zone is that in which the concentration of a contaminant is above the
trigger value and below the action value. Concentrations falling into this area
indicate that there is a need to consider whether action is justified. If the level of risk
is considered to warrant action, then it should be taken. The decision is left to
professional judgement.
The third zone is that in which concentrations of contaminants exceed the action
trigger value. When this is the case, the risks of the hazards occurring usually
become so high that the presence of the contaminant has to be considered
undesirable or even unacceptable. The site must be regarded as contaminated and
action of some kind is then essential.
Czarnecki (1996) noted, however, that the ICRCL guidelines offer action levels for a
very restricted number of contaminants. Other problems associated with the
guidelines included (Czarnecki 1996):
i.
few hydrocarbons are considered,
ii.
no guidance is offered for groundwater,
iii.
limited guidance is available on appropriate laboratory testing techniques,
and
iv.
the range of guidance for heavy metals is restricted.
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Due to these restrictions, many engineers adopted the Dutch “ABC” standards (see
Section 2.3.3). The guidelines are wider ranging than both Kelly (1978) and ICRCL.
These standards, however, should also be treated with caution as they relate to the
special geological and hydrogeological conditions of the Netherlands which justify
the rigorous approach taken on the presence of contaminants in soils (Beckett 1993).
The standards, furthermore, relate to the Dutch multifunctionality principle (see
Section 2.3.3), requiring clean-up to a level capable of supporting any end-use, hence
they are stricter and more rigid.
The US approach to clean-up has avoided the use of trigger levels. Instead it has
favoured site specific quantitative risk assessments in which a more rigorous
source-pathway-target analysis is achievable compared with using guideline values
and where many site specific factors may be incorporated into the decision making
process (Campbell 1996). In practice, however, site specific risk assessment has
often proved to be a costly and laborious technique. Such risk assessments may also
be very controversial with the possibility of numerous legal challenges; as a
consequence a substantial part of the Superfund budget has been spent on legal fees
alone (see Section 2.2.10). Hawkins (1994) noted that such an approach had
produced:
i.
unrealistic clean-up goals,
ii.
increased costs,
iii.
encouraged litigation, and
iv.
prevented urban development on formerly polluted sites.
Hawkins (1994) went on to note that manufacturers, particularly in California, have
often chosen to build on undeveloped land rather than contending with the costs and
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delays of restoring a contaminated site in an area long used for industrial practices.
Polluted areas, therefore, remain derelict while pristine rural property is developed
under lax zoning laws.
In recognition of the problems caused by the lack of adequate guidance on clean-up
standards, the UK Department of Environment has recently studied a risk assessment
approach (Czarnecki 1996). Rather than rely on individual concentrations, it is
recommended that consideration should be given to the risk posed to potential
receptors (i.e. humans, flora/fauna, groundwater).
As described above, this method stems largely from the activities in the US where
risk assessments have been used to prioritise National Priority List (NPL) sites.
Czarnecki (1996) noted, however, that the suggested approach is sufficiently
different to avoid the pitfalls of the Superfund system. The risk assessment involves
the identification of a source-pathway-target relationship. For a site to be regarded as
contaminated, there has to be a migration pathway to a potential receptor for there to
be a quantifiable risk. The draft guidance uses the example shown in Fig. 2-3 (DoE
1995).
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Figure 2-3 Source-Pathway-Target Relationship
Target Present: child
Source Present: cadmium in soil
For there to be significant possibilities of a child suffering harm as a result of
exposure to cadmium in soil, the source must be accessible through one or more
pathways. Possible pathways include the ingestion or inhalation of contaminated soil,
skin contact with the soil, or the consumption of contaminated vegetables.
If the child has access in one of these ways to the soil containing cadmium a
plausible source-pathway-target relationship has been established. If, however, the
soil is all beneath a concrete hard standing, then a plausible relationship is unlikely to
be established.
(Source: DoE 1995)
Campbell (1996) noted the principal differences between the guideline values upon
which the risk assessment approach is based and the ICRCL trigger levels will be the
availability of detailed technical guidance. The Guidance will explain the selection of
guideline values and how they will be used in practice. The values have been the
subject of an extensive peer review process by leading industrial groups, regulatory
authorities, and academics. The review also takes into account advances in exposure
and risk assessment since the release of the ICRCL guidance.
From the above discussion, the following point is considered for further research:
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Question:
What is the preferred mechanism for setting remedial criteria in line
with the “suitable for use” philosophy?
2.6
SUMMARY AND CONCLUSIONS
The review of literature in this chapter outlined the policy approaches adopted within
the UK for remedial treatment in comparison with the experience of the USA and the
Netherlands who were arguably the frontrunners in contaminated land policy
enactment due to the environmental disasters they faced during the late 1970s. As
discussed in previous sections, these policies have encountered serious problems,
mainly due to very high costs involved and low clean-up rates.
According to Wills (1996c) the Superfund programme failed due to its stringent
clean-up standards and rigid liability regime. The system proposed by the UK
attempts to avoid such mistakes by taking into account the wealth creating sectors of
the economy. Increasingly, the UK’s “suitable for use” approach is being recognised
as the most effective way to deal with containment. Both the Dutch and the
Americans are moving towards this policy style by removing the requirement for
multifunctionality in remediation and clean-ups based on risk assessment and new
initiatives designed to target the redevelopment of brownfield sites.
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Question:
Are international contaminated land policies converging towards an
“end-use” style approach?
As discussed above, an “end-use” or “suitable for use” style policy approach is
gaining favour. The US and the Netherlands both promulgated radically differing
stances from the UK on contaminated land following environmental disasters. A
move towards an end-use approach would, therefore, mean a radical shift in policy.
Wills (1996c) stated that there are two widely held perceptions as to why the UK has
not experienced a US Love Canal style disaster and the resulting raft of prescriptive
legislation. These are: the strength of the planning and zoning system in the UK; and,
the more cynical view that the majority of the UK sits on an impermeable layer of
boulder clay, the lack of disasters being more luck than judgement. The UK’s
“suitable for use” policy, however, relies to a greater extent on the former of the two
reasons.
_______________________________________________
Question:
Will an “end-use” style approach deal effectively with the
contaminated land legacy present throughout the world?
“End-use” style policy approaches are gaining favour due to the failures of
Superfund and multifunctionality. This does not necessarily mean that “suitable for
use” provides the ultimate solution. As discussed in Section 2.5.3, the UK Royal
Commission on Environmental Pollution criticised the approach. The RCEP’s main
criticisms were that decisions regarding the level of site clean-up were sometimes
taken without knowledge of the future use, or that the new use may later give way to
another. The RCEP’s preferred approach requires that the combination of
remediation and subsequent adopted use should represent the “best practicable
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environmental option”. In response to the RCEP’s report, the Government dismissed
this recommendation arguing that it would act against the interests of sustainable
development and would impose undue regulatory burdens on the economy without
reducing risks to health or the environment.
_______________________________________________
Question:
Are proactive approaches applicable and do they compliment or
hinder “suitable for use”?
Proactive approaches are intended to accelerate the clean-up of contaminated land by
attracting potential users of such sites into the redevelopment process. The RCEP
(1996) recommended that, in line with this policy, land banks of remediated sites in
various stages of restoration should be promoted and potential users of such sites
actively sought out. The US Brownfield Action Agenda contained similar measures
to those suggested by the RCEP (1996). The Agenda attempts to promote voluntary
clean-up of contaminated sites where prescriptive legislation and liability have been
perceived to be a hindrance to redevelopment.
The Government, however, did not consider land banks appropriate, preferring to
pursue the redevelopment of sites through the planning system, which already
includes reclamations as part of their “development plans”.
_______________________________________________
Question:
What has been the effect of public opinion on the development and
adaptation of contaminated land policies?
The Superfund programme was arguably introduced as a result of the huge public
outcry resulting from US environmental disasters, such as Love Canal (see Section
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2.2.4). Public outcry to the Lekkekerk incident, was similarly responsible for the
Netherlands approach.
In the UK, the Section 143 Registers failed due to political lobbying by the property
industry and land owners, who feared that blight to land would occur if the registers
were made public, thus affecting property/land values.
_______________________________________________
Question:
What is the preferred mechanism for setting of clean-up criteria in
line with the “suitable for use” philosophy?
_______________________________________________
The following chapter describes the Research Objectives that are based on this
literature review and research questions. The methodology used to provide data for
investigation of the research questions listed above is discussed in Chapter 4.
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